Cook County Record

Tuesday, July 9, 2019

Sheriff's deputies disciplined over misconduct charges given new chance to argue Sheriff's discipline board illegal

Lawsuits

By Scott Holland | Jun 21, 2019


Cook County Sheriff Tom Dart | Youtube screenshot

Editor's note: This article has been revised from an earlier version to correctly list both attorneys representing the plaintiffs in the referenced case.

CHICAGO — An Illinois appeals court has determined a group of Cook County Sheriff’s deputies can resume their lawsuit over claims their professional discipline was improper because the Sheriff’s Merit Board was illegally constituted.

In July, Cook County Circuit Judge Sophia Hall granted Cook County Sheriff Tom Dart’s request to toss the lawsuit brought by sheriff’s officers Matthew Goral, Kevin Badon, Michael Mendez, Milan Stojkovic, David Evans III, Frank Donis and Lashon Shaffer.

Dart asked the Merit Board to terminate the seven plaintiffs for such alleged misconduct as false overtime reporting, detainee abuse, interference with an FBI investigation into detainee abuse and interference with a domestic abuse investigation, according to briefs filed by the sheriff’s office. However, as in the similar pending actions, the plaintiffs said Dart improperly appointed board members to interim terms, and not staggered, six-year terms as required by law, negating the board’s ability to rule on their cases.

The plaintiffs appealed Hall’s ruling to the Illinois First District Appellate Court. Justice David Ellis wrote the opinion issued June 19; Justices James Fitzgerald Smith and Cynthia Cobbs concurred.

According to Ellis, Hall dismissed the complaint because each plaintiff had a pending administrative hearing and therefore hadn’t exhausted their administrative remedies as required before challenging the board’s statutory authority. But the panel pointed to several other instances in which a defect in a board’s composition nullified its authority to act. And since the question is if the board was legally composed, the justices said, the plaintiffs’ lawsuit can be considered even before their disciplinary hearings are completed.

“If the (Merit) Board lacks the authority to hear the case, the merits of the underlying case are irrelevant, so there is no reason why a court should wait for a developed underlying record to decide that legal question,” Ellis wrote.

The panel then looked at the individual counts of the plaintiff’s complaint to determine which also survived the doctrine that requires complete exhaustion of administrative remedies before filing a lawsuit. Most prevailed, but the panel took issue with the plaintiffs’ allegations about due process violations.

The plaintiffs alleged the Board is biased against them because Dart appointed its members, but the panel said one plaintiff, Evans, has since prevailed in his case which “only underscores that plaintiffs have alleged nothing more than the possibility of bias,” Ellis wrote. He said a similar allegation, that the lawsuit itself prejudiced Board members against plaintiffs, is likewise deficient.

A third due process claim centered on the Board’s new policy of making challengers pay for hearing transcripts. The plaintiffs said the “fee is unfair and burdensome,” Ellis wrote, but didn’t say they couldn’t afford to pay, and will only be allowed to proceed if they amend their filing in that regard.

The justices, however, rejected the sheriff's attempt to argue the appellate court should swat down the plaintiffs' lawsuits under the so-called de facto officer doctrine, which allows an official’s acts to remain valid even if their authority is later deemed deficient.

Justice Ellis noted, in Illinois, the courts could dispense with the plaintiffs' claims, if they were filed using the same legal theory as a plaintiff who had prevailed against the Merit Board over similar allegations - in this case, whether the composition of the Merit Board was legal. A First District Appellate panel in 2016 had ruled a prior plaintiff, in the lawsuit docketed as Taylor v Dart, could have his disciplinary proceedings reexamined over just that issue.

“There is a catch, however, in Illinois,” Ellis wrote, noting the cases brought by the new plaintiffs are different from Taylor.

“Plaintiffs have been raising statutory-authorization arguments before the Board since their cases began, they continue to raise them and they raised them in this separate lawsuit,” Ellis wrote. “They have all but shouted them from the mountaintop — before a final administrative was rendered. That makes all the difference in the world.”

The plaintiffs specifically alleged the Merit Board and Dart held their cases in abeyance after the Taylor case was decided, and after the General Assembly amended the law governing appointments. The sheriff then seated a new Merit Board, and Dart then filed amended charges that essentially were the same as the original complaints.

“A new statute, a new Board — but plaintiffs can’t challenge the composition of this Board because Percy Taylor challenged the composition of a different Board under a different statute a few years ago?” Ellis wrote. “Nonsense.”

The panel reversed the bulk of Hall’s ruling and amended the complaint for further proceedings.

The plaintiffs are represented by attorney Christopher Cooper, of Chicago, and attorney Cass Casper, of Talon Law, of Chicago.

Dart and his office have been represented by attorneys Stephanie A. Scharf, Sarah R. Marmor, Deirdre A. Fox and George D. Sax, of the firm of Scharf Banks Marmor LLC, of Chicago.

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Organizations in this Story

Christopher Cooper Law of Circuit Court of Cook County Cook County's Sheriff's Department Illinois First District Appellate Court Scharf Banks Marmor LLC Talon Law, LLC

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